Protecting Sound Recordings Made Before 1972

Protecting Sound Recordings Made Before 1972

SoundExchange President & CEO Michael Huppe with Members of Congress and Pre-1972 Artists

SoundExchange President & CEO Michael Huppe with Members of Congress and Pre-1972 Artists at the RESPECT Act Bill Launch Event, May 29, 2014.

Background

Sound recordings were first brought within the scope of federal copyright protection beginning in 1972. Sound recordings made before February 15, 1972 were protected by various state laws, however, some digital music services were using them without paying royalties or otherwise getting permission. SoundExchange estimates that non-payment for pre-1972 recordings cost artists and labels well over $60M in royalties in 2014 and more than $70M in royalties in 2015.

In 2014, several copyright holders, including Flo & Eddie of The Turtles (“Happy Together,” “She’d Rather Be With Me”) and a group of major and independent record labels, took legal action to defend their rights in their pre-1972 sound recordings under state statutory and common law. They alleged that SiriusXM and Pandora refused to license and pay royalties for the use of pre-1972 sound recordings, violating state laws. SoundExchange filed its own lawsuit against SiriusXM as well, which separately addressed Sirius XM’s underpayment of royalties under federal law. Many of these lawsuits resulted in settlements between the copyright owners and the services that had been withholding royalty payments, but these settlements did not create certainty in the law about the protection of recordings from this iconic era of music.

Legislation to Protect Legacy Recording Artists

In 2014, SoundExchange launched Project72, a campaign to ensure fair pay for artists who recorded their music before 1972. In subsequent years, SoundExchange was successful in getting Congress to introduce a number of legislative solutions to this problem, including the RESPECT Act, which would have required digital services to pay for all the music they play, regardless of the year it was recorded; the Fair Play Fair Pay Act, which would have required digital services to pay for all the music they play and required AM/FM radio to compensate artists when using their music; and the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (CLASSICS Act), which would have brought digital performances of pre-1972 sound recordings into the federal system, allowing these performances of sound recordings to be licensed under the same statutory scheme as all other sound recordings.

Ultimately, the CLASSICS Act was folded into the Music Modernization Act (MMA), which was signed into law on October 11, 2018.

The “Win”

As enacted into law, Title II of the MMA, now called the Classics Protection and Access Act, extends copyright protection to pre-1972 sounds recordings on essentially the same terms as post-1972 sound recordings and therefore closes the pre-72 loophole by establishing federal copyright protection that will guarantee compensation for artists who recorded music before February 15, 1972.

SoundExchange is proud of our role in closing the pre-72 loophole that allowed digital radio companies like Pandora and SiriusXM to become behemoths off of pre-72 artists while not paying them a dime.